5.  The applicant was born in 1965 and lives in Perales Del Río (Madrid).
6.  At the material time she worked full-time in a hypermarket, mornings or afternoons, from Monday to Saturday
7.  On 26 February 2003, relying on Article 37 § 5 of the Labour Regulations, the applicant asked her employer to reduce her working hours (with a corresponding reduction of her salary) because she had custody of her son, who was under six years old. She applied to work half-time, from 4 p.m. to 9.15 p.m. from Monday to Wednesday.
8.  In a letter of 21 March 2003 her employer notified her that she would not be allowed to work the hours requested. Instead, he proposed that she work half days, from Monday to Saturday, in the morning or afternoon.
9.  An attempt by the applicant to reach an agreement with her employer with the help of the Madrid Mediation, Conciliation and Arbitration Board failed.
10.  On 20 May 2003 the applicant brought special proceedings before the Employment Tribunal to adjust her working hours to enable her to look after a child under six years of age. In a judgment of 25 September 2003 Madrid Employment Tribunal no. 1 dismissed the applicant’s case, considering that reductions in working hours should be made in the ordinary working day, whereas the applicant wanted to take several working days off (from Thursday to Saturday) and not to work mornings at all, which was not a reduction but a modification of the working day.
11.  On 6 November 2003 the applicant lodged an amparo appeal with the Constitutional Court, based on the right to a fair hearing and the principle prohibiting discrimination on grounds of sex. In a judgment of 15 January 2007 the Constitutional Court allowed the appeal, considering that the principle that there should be no discrimination based on gender had been violated in the applicant’s case. The court referred to the established case-law of the Court of Justice of the European Communities to the effect that “Community law precluded the application of a domestic measure which, although formulated in a neutral manner, affected a much higher percentage of women than men”, unless this was the result of objective factors unrelated to any discrimination on grounds of sex. It noted that “in the event of indirect discrimination it is not necessary to prove the existence of more favourable treatment reserved exclusively for men; it is sufficient that there exists a legal provision the interpretation or application of which adversely affects a group composed mainly of female employees”. The Constitutional Court found that there had been a breach of the principle prohibiting discrimination on grounds of sex, stating: “the court’s refusal to acknowledge [the applicant’s right to] a reduction of her working hours, without examining to what degree the reduction concerned was necessary in order to respect the constitutional purposes for which [the possibility of working reduced hours] had been introduced or what organisational difficulties the employer might have if [the applicant’s] right to work the hours concerned were to be acknowledged, constitutes an unjustified obstacle to [the applicant] in her work and in reconciling that work with her family life, and therefore discrimination on grounds of sex”. The Constitutional Court accordingly allowed the amparo appeal, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered that court to deliver a new judgment in keeping with the fundamental right in issue.
12.  In a new judgment of 6 September 2007 the Employment Tribunal again dismissed the applicant’s case. It considered that the reduction in working hours the applicant was seeking fell outside the scope of Article 37 of the Labour Regulations because she wanted to take Thursdays, Fridays and Saturdays off, especially as two of those days – Friday and Saturday – were the busiest days of the week. The court also held that, for the purposes of the constitutional protection she had been afforded, the applicant had not sufficiently justified the need for a reduction in her working hours that went beyond the bounds of a simple rearrangement of the ordinary working day.
13.  On 28 November 2007, the applicant lodged a new amparo appeal with the Constitutional Court, which that court examined as proceedings in execution of its judgment of 15 January 2007. On 29 October 2008 she informed the Constitutional Court that her son had since turned six years old, so that as a result of the length of the judicial proceedings she no longer had the right to the reduced working hours she had applied for in order to look after her son. As the Constitutional Court’s judgment could therefore no longer be enforced as such, the applicant claimed alternative compensation, under Article 18 § 2 of the Judicature Act (Ley Orgánica del Poder Judicial, “the LOPJ”), in the amount of 40,986 euros (EUR).
14.  In a reasoned decision of 12 January 2009 the Constitutional Court held that its judgment of 15 January 2007 had not been correctly executed, and set aside the Employment Tribunal’s judgment of 6 September 2007. However, it found that there was no need to remit the case to the lower court in so far as a new judgment of that court would serve no purpose now that the child was over six, and that an award of compensation was not permitted under Article 92 of the Institutional Law on the Constitutional Court.
15.  A dissenting opinion was appended to the judgment. The dissenting judge deemed, inter alia, that the Constitutional Court should have awarded the applicant compensation, particularly in a case such as hers where compensation was the only way to protect the fundamental right in issue and restore the applicant’s right in full.